EOS ENERGY ENTERPRISES, INC. Item 1.01 Entry into a Material Definitive Agreement.
Registration Rights Agreement
Upon the Closing, the Company, on the one hand, and certain former equityholders
of Eos HoldCo, on the other hand, entered into a registration rights agreement
(the "Registration Rights Agreement"). Under the Registration Rights Agreement,
the Company is required to, within forty-five (45) days after the Closing, file
a registration statement registering the resale of all or any portion of the
Company's common stock issued as merger consideration under the Merger Agreement
(the "
As part of the Registration Rights Agreement, holders of the
Under the Registration Rights Agreement, we agree to indemnify the stockholders
holding
This summary is qualified in its entirety by reference to the text of the Registration Rights Agreement, which is included as Exhibit 10.9 to this Current Report and is incorporated herein by reference.
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Sponsor Earnout Letter
In connection with the Merger Agreement, BMRG entered into a Sponsor Earnout
Letter with
Item 2.01 Completion of Acquisition or Disposition of Assets.
The disclosure set forth in the "Introductory Note" above is incorporated by reference into this Item 2.01. The material terms and conditions of the Merger Agreement are described in the Proxy Statement in the section entitled "The Business Combination Proposal - The Merger Agreement," which is incorporated herein by reference.
At a special meeting of the stockholders of BMRG held on
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At the Special Meeting, holders of 6,442,195 shares of BMRG's common stock sold
in BMRG's initial public offering ("Public Shares") exercised their right to
redeem those shares for cash at a price of
Immediately after giving effect to the Business Combination (including as a result of the redemptions described above, the conversion of all outstanding founder shares into shares of Class A common stock on a one-for-one basis at the Closing pursuant to BMRG's amended and restated certificate of incorporation, the conversion of all shares of Class A common stock in shares of the Company's common stock, and the issuance of an additional 4,000,000 shares of the Company's common stock in the PIPE Financing as described in Item 3.02 below), there were approximately 49,813,547 shares of the Company's common stock issued and outstanding and warrants to purchase approximately 9,075,000 million shares of the Company's common stock issued and outstanding. The number of shares of common stock outstanding includes 29,730,341 shares issued to former Eos unitholders in the Business Combination, which was calculated as 30 million shares less the in-the-money value of pre Business Combination outstanding options to purchase Eos equity, based on the effective per-unit price of the Business Combination.
Prior the Closing, each unit of BMRG consisted of one share of Class A common
stock and one-half of one redeemable warrant of the Company, whereby each whole
warrant entitled the holder to purchase one share of Class A common stock at an
exercise price of
Upon the closing, BMRG's amended and restated certificate of incorporation,
dated
Item 2.02 Results of Operations and Financial Condition.
Certain annual and quarterly financial information regarding Eos OpCo is included in the Prospectus, in the section titled "Management's Discussion and Analysis of Financial Condition and Results of Operations of Eos", which is incorporated herein by reference. The disclosure contained in Item 2.01 of this Current Report is also incorporated herein by reference.
Item 3.02 Unregistered Sales of
On
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Upon the Closing, (i) all shares of BMRG's Class B common stock were reclassified to Class A common stock; and (ii) immediately following this reclassification, all shares of BMRG's Class A common stock were reclassified to our common stock. The shares of Class A common stock issued upon reclassification of the Class B common Stock were not registered under the Securities Act in reliance on the exemption from registration provided by Section 3(a)(9) of the Securities Act.
The securities issued to the former equityholders of Eos HoldCo pursuant to the Merger Agreement have not been registered under the Securities Act in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder. Item 2.01 of this Current Report discusses the transactions contemplated by the Merger Agreement, and is incorporated herein by reference.
The PIPE Shares issued to the
Item 3.03 Material Modification to Rights of Security Holders.
Amended and Restated Certificate of Incorporation
Upon the Closing, BMRG's second amended and restated certificate of
incorporation, dated
(a) changes the Registrant's name to "
Riley Principal Merger Corp. II";
(b) increases the authorized capital stock from 126,000,000 shares, which
consisted of 100,000,000 shares of Class A common stock, 25,000,000 shares of
Class B common stock and 1,000,000 shares of preferred stock, par value
$0.0001 per share, to 201,000,000 shares, which consists of 200,000,000
shares of common stock, and 1,000,000 shares of preferred stock;
(c) provides that any amendment to certain provisions of the Company's charter
and any amendment to the Company's bylaws will require the approval of the
holders of at least 66⅔% of the Company's then-outstanding shares of
capital stock entitled to vote generally at an election of directors;
(d) provides that the Company opts out of Section 203 of the Delaware General
Corporation Law, which prevents certain Delaware corporations, under certain
circumstances, from engaging in a "business combination" with certain
"interested stockholders" and their affiliates
(e) provides that certain amendments to and actions under the Amended Certificate
are subject to the director nomination agreement, dated November 16, 2020 ,
between the Company and the other parties thereto (the "Director Nomination
Agreement");
(f) changes the classification of the board of directors from two classes to
three classes of directors, with each class elected for staggered terms; and
(g) provides for a waiver of the doctrine of corporate opportunities for (i) any
director of the Company who is not an employee of the Company or any of its
subsidiaries or (ii) any person with the right to designate any such director
pursuant to the Director Nomination Agreement (or any of such person's
affiliates or its or their respective successors, principals, directors,
officers, members, managers or employees).
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The stockholders of BMRG approved the Amended Certificate at the Special Meeting. This summary is qualified in its entirety by reference to the text of the Amended Certificate, which is included as Exhibit 3.1 to this Current Report and is incorporated herein by reference.
Amended and Restated Bylaws
Upon the Closing, BMRG's bylaws were amended and restated to be consistent with our Amended Certificate and to make certain other changes that our board of directors deems appropriate for a public operating company. This summary is qualified in its entirety by reference to the text of the amended and restated bylaws, which are included as Exhibit 3.2 to this Current Report and is incorporated herein by reference.
Item 4.01 Changes in Registrant's Certifying Accountant.
(a) Dismissal of independent registered public accounting firm
On
The report of Marcum on BMRG's, the Company's legal predecessor, balance sheet
as of
During the period from
During the period from
Eos OpCo provided Marcum with a copy of the disclosures made pursuant to this Item 4.01 prior to the filing of this Current Report and requested that Marcum furnish a letter addressed to the Commission, which is included as Exhibit 16.1 to this Current Report, stating whether it agrees with these disclosures, and, if not, stating the respects in which it does not agree.
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Item 5.01 Changes in Control of Registrant.
Reference is made to the disclosure in the Proxy Statement in the section titled "The Business Combination Proposal," which is incorporated herein by reference. Further reference is made to the disclosure in the Prospectus in the section titled "Summary of the Prospectus-The Business Combination," which is incorporated herein by reference. Further reference is made to the information contained in "Introductory Note" above and in Item 2.01 of this Current Report, which are incorporated herein by reference.
Immediately after giving effect to the Business Combination, there were approximately 49,813,547 million shares of the Company's common stock issued and outstanding and warrants to purchase approximately 9,075,000 million shares of the Company's common stock issued and outstanding. The number of shares of common stock outstanding includes 29,730,341 shares issued to former Eos unitholders in the Business Combination, which was calculated as 30 million shares less the in-the-money value of pre Business Combination outstanding options to purchase Eos equity, based on the effective per-unit price of the Business Combination.At that time, our executive officers and directors and their affiliated entities held approximately 20% of our outstanding shares of our common stock.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
Appointment of Directors and Officers
The following persons are serving as executive officers and directors following the Closing. For biographical information concerning the executive officers and directors, see the disclosure in the Prospectus in the sections titled "Management," which is incorporated herein by reference.
Name Age Position Joe Mastrangelo 51 Chief Executive Officer and Class II Director Sagar Kurada 42 Chief Financial Officer Mack Treece 61 Chief Strategic Alliances Officer Dr. Balakrishnan G. Iyer 46 Chief Commercial Officer Daniel Shribman 36 Class III Director Russ Stidolph 45 Class III Director Dr. Krishna Singh 73 Class III Director Alex Dimitrief 61 Class II Director Andrey Zibelman 63 Class I Director Mariam "Mimi" Walters 58 Class I Director
Effective upon the Closing, all executive officers and directors of BMRG, other
than
Indemnity Agreements
Item 1.01 of this Current Report discusses the indemnification agreements entered into between the Company and each of its directors and executive officers, and is incorporated herein by reference.
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2020 Equity Incentive Plan
At the Special Meeting, the BMRG stockholders considered and approved the
A more complete summary of the terms of the Incentive Plan is set forth in the Proxy Statement in the section entitled "The Incentive Plan Proposal," which is incorporated by reference herein. That summary and the foregoing description are qualified in their entirety by reference to the text of the Incentive Plan, which is filed as Exhibit 10.10 hereto and incorporated herein by reference.
Employment Agreements
Eos OpCo entered into Employment Agreements with
The descriptions of the employment agreements incorporated herein with respect to each of Messrs. Mastrangelo and Treece do not purport to be complete and are qualified in their entirety by the terms and conditions of the employment agreements, which are included as Exhibits 10.11 and 10.12, respectively, to this Current Report and are incorporated herein by reference.
Item 9.01 Financial Statement and Exhibits.
(a)-(b) Financial Statements.
Information responsive to Item 9.01(a) and (b) of Form 8-K is set forth in the financial statements included in the Prospectus beginning on page F-1.
The unaudited pro forma condensed combined financial information of the Company
as of and for the nine months ended
The consolidated financial statements of Eos OpCo, as of
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The consolidated financial statements of BMRG (i) as of
(d) Exhibits-
Exhibit Incorporated by Reference
File Filing
Number Description of Document Schedule/Form Number Exhibits Date
2.1† Agreement and Plan of Merger, Form 8-K File No. 2.1 September
dated as of September 7, 2020, by 001-39291 8, 2020
and among the Company, BMRG
Merger Sub, LLC, BMRG Merger Sub
II, LLC, Eos Energy Storage LLC,
New Eos Energy LLC and AltEnergy
Storage VI, LLC (incorporated by
reference to Exhibit 2.1 of the
Registrant's Current Report on
Form 8-K filed with the SEC on
September 8, 2020).
3.1* Third Amended and Restated
Certificate of Incorporation of
the Company
3.2* Amended and Restated Bylaws of
the Company
4.1* Specimen Common Stock
Certificate
4.2* Specimen Warrant Certificate
4.3 Warrant Agreement, dated May Form S-1/A File No. 4.4 May 22,
19, 2020, by and between the 001-39291 2020
Registrant and Continental Stock
Transfer & Trust Company
10.1 Business Combination Marketing Form 8-K File No. 1.2 May 22,
Agreement, dated as of May 19, 001-39291 2020
2020 by and between the
Registrant and B. Riley FBR,
Inc.
10.2 Letter Agreement, dated May 19, Form 8-K File No. 10.1 May 22,
2020, by and among the 001-39291 2020
Registrant, its officers, its
directors and B. Riley Principal
Sponsor Co. II, LLC
10.3 Investment Management Trust Form 8-K File No. 10.2 May 22,
Agreement, dated May 19, 2020, by 001-39291 2020
and between the Registrant and
Continental Stock Transfer &
Trust Company
10.4 Registration Rights Agreement, Form 8-K File No. 10.3 May 22,
dated May 19, 2020, by and 001-39291 2020
between the Registrant, B. Riley
Principal Sponsor Co. II, LLC and
the Registrant's independent
directors
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10.5 Private Placement Units Form 8-K File No. 10.4 May 22, 2020
Purchase Agreement, dated May 19, 001-39291
2020, by and between the
Registrant and B. Riley Principal
Sponsor Co. II, LLC
10.6 Administrative Support Form 8-K File No. 10.6 May 22, 2020
Agreement, dated May 19, 2020, by 001-39291
and between the Registrant and B.
Riley Corporate Services, Inc.
10.7* Form of Subscription Agreement
10.8* Sponsor Earnout Letter
10.9* Registration Rights Agreement,
dated November 16, 2020 , by and
among the Company and the
securityholders party thereto.
10.10* B. Riley Principal Merger Corp.
II 2020 Incentive Plan
10.11* Employment Agreement, dated
June 22, 2020 , by and between the
Company and Joe Mastrangelo
10.12* Employment Agreement, dated
June 1, 2020 , by and between the
Company and Mack Treece
10.13* Form of Indemnity Agreement
16.1* Letter from Marcum LLP to the
SEC , dated November 20, 2020
21.1* Subsidiaries of the Company
99.1* Unaudited Pro Forma Condensed
Financial information of the
Company
† Certain of the exhibits and schedules to this Exhibit have been omitted in
accordance with Regulation S-K Item 601(a)(5). The Registrant agrees to furnish
a copy of all omitted exhibits and schedules to the
* Filed herewith.
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